[Senate Executive Report 104-20]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-20
_______________________________________________________________________


 
 AGREEMENT FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION ON 
     THE LAW OF THE SEA OF 10 DECEMBER 1982 RELATING TO FISH STOCKS

                                _______
                                

                 June 26, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                   [To accompany Treaty Doc. 104-24]

    The Committee on Foreign Relations, to which was referred 
The Agreement for the Implementation of the Provisions of the 
United Nations Convention on the Law of the Sea of 10 December 
1982 Relating to the Conservation and Management of Straddling 
Fish Stocks and Highly Migratory Fish Stocks, with Annexes 
(``The Agreement''), which was Adopted at United Nations 
Headquarters in New York by Consensus of the United Nations 
Conference on Straddling Fish Stocks and Highly Migratory Fish 
Stocks on August 4, 1995, and signed by the United States on 
December 4, 1995, having considered the same, reports favorably 
thereon subject to one declaration and recommends that the 
Senate give its advice and consent to ratification thereof 
subject to the one declaration as set forth in this report and 
the accompanying resolution of ratification.

                               I. Purpose

    The stated objective of the Agreement is ``to ensure the 
long-term conservation and sustainable use of straddling fish 
stocks and highly migratory fish stocks through effective 
implementation of the relevant provisions of the Convention.''

                             II. Background

    The ``Agreement for the Implementation of the United 
Nations Convention on the Law of the Sea of 10 December 1982 
Relating to the Conservation and Management of Straddling Fish 
Stocks and Highly Migratory Fish Stocks, With Annexes'' 
(hereinafter, ``the Agreement'') was adopted by a United 
Nations-sponsored conference on the subject on August 4, 1995; 
was signed by the United States on December 4, 1995; and was 
submitted by President Clinton to the Senate for its advice and 
consent on February 20, 1996.

                              III. Summary

                               a. general

    The Agreement is an outgrowth of the United Nations 
Convention on the Law of the Sea (hereinafter ``the 
Convention''), which generally commits State Parties to the 
conservation of the living resources of the oceans and to 
cooperation in their management and utilization. The Convention 
grants coastal States sovereign rights with respect to the 
natural resources, whether living or non-living, in exclusive 
economic zones (EEZ) of up to 200 miles from their coastlines 
but obligates such States to ``ensure through proper 
conservation and management measures that the maintenance of 
the living resources in the exclusive economic zone is not 
endangered by over-exploitation.'' \1\ The Convention's 
provisions of fisheries and exclusive economic zones are now 
accepted as customary international law.
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    \1\ LOS Convention, Articles 56(1) and 61(2).
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    The Convention further grants the nationals of all States 
the right to fish on the high seas, subject to a duty ``to take 
such measures * * * as may be necessary for the conservation of 
the living resources of the high seas'' and to a mandate to 
``co-operate with each other in the conservation and management 
of living resources in the areas of the high seas.'' \2\ With 
respect to straddling fish stocks and highly migratory fish 
stocks, the Convention specifically obligates State Parties to 
cooperate directly or through appropriate subregional, 
regional, or international organizations to ensure their 
conservation.\3\
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    \2\ Id., Articles 116-118.
    \3\ Id., Articles 63, 64, and 118.
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    The Straddling Stocks Agreement authorizes more specific 
management and conservation measures, including the adoption, 
monitoring and enforcement of effective conservation measures. 
The Agreement attempts to address the problems of unregulated 
fishing, overcapitalization, excessive fleet size, vessel 
reflagging to escape controls, insufficient selective gear, 
unreliable databases and lack of sufficient cooperation between 
States.
    The Agreement is broken down into 13 Parts and has two 
Annexes. An overview of the obligations set forth in the Parts 
and Annexes are as follows:

                     b. section-by-section summary

Part I--General provisions

    Articles 1 through 4 define terms, state the objectives of 
the Agreement, define the scope of application and the 
principles guiding interpretation of the Agreement.

Part II--Conservation and management

    Articles 5 through 7 form Part II of the Agreement and 
detail the obligations of the Parties with regard to 
Conservation and Management. The Agreement commits Parties to 
apply a ``precautionary approach'' to management and 
conservation of straddling fish stocks and highly migratory 
fish stocks in order to protect the living marine resources and 
preserve the marine environment. States must be ``more cautious 
when information is uncertain, unreliable or inadequate.'' This 
Part sets out the guidelines for the application of two 
categories of precautionary reference points set forth in Annex 
II to the Agreement.
    This Part also requires that Parties ``cooperate'' to 
ensure conservation and to promote the objective of optimum 
utilization of highly migratory fish stocks both within and 
beyond the coastal States' EEZs. Failure to reach either final 
or provisional agreement on appropriate conservation and 
management failures entitles any of the States concerned to 
invoke the procedures set forth in Part VII regarding the 
compulsory settlement of disputes.

Part III--Mechanisms for international cooperation

    Articles 8 through 16 set out the mechanisms by which the 
Parties are to cooperate on conservation and management issues. 
Parties may cooperate either directly or through appropriate 
regional or subregional fisheries management organizations or 
arrangements. Failure to take part in these management 
organizations can bar a State's access to the fishery resources 
governed by those measures.
    States are directed to cooperate with regional or 
subregional fisheries management organizations or arrangements 
and sets forth a variety of functions for such organizations or 
arrangements, including the development of conservation and 
management measures, the allocation of allowable catch and 
levels of fishing effort, the formulation of minimum standards 
for the responsible conduct of fishing operations, the 
collection and exchange of data on fisheries, the conduct of 
scientific assessments, the promotion of the peaceful 
settlement of disputes, and the establishment of appropriate 
cooperative mechanisms for effective monitoring, control, 
surveillance, and enforcement.

Part IV--Nonmembers and nonparticipants

    Article 17 provides that States which are not members of 
fishery management organizations or participants in fishery 
management arrangements or which do not otherwise agree to 
apply the relevant conservation and management measures are 
still obligated to cooperate in conserving and managing 
straddling fish stocks and highly migratory fish stocks and 
that they may not authorize their fishing vessels to fish for 
such stocks. States which are members or participants are also 
obliged to exchange information about vessels that fail to take 
measures consistent with this Agreement and international law.

Part V--Duties of the flag State

    Article 18 obligates each State to ``take such measures as 
may be necessary'' to ensure that vessels flying its flag that 
fish on the high seas comply with regional and subregional 
conservation and management measures.

Part VI--Compliance and enforcement

    Articles 19 through 23 set out duties for each State to 
enforce regional and subregional conservation and management 
measures against vessels flying its flag, regardless of where 
the violations occur; to cooperate in the enforcement of 
regional and subregional conservation and management measures. 
This Part authorizes State Parties that are members of 
fisheries management organizations or participants in fisheries 
management arrangements to board and inspect fishing vessels 
flying the flag of another State party to the Agreement on the 
high seas or in an area under a State's national jurisdiction, 
in order to ensure compliance with conservation and management 
measures established by the organization or arrangement. 
Procedures are set out for boarding and inspecting the vessels. 
Also under this Part port States have a right and duty to take 
measures to effectuate conservation and management measures.

Part VII--Requirements of developing States

    Articles 24 through 26 require Parties to take into account 
the special requirements of developing States in establishing 
conservation and management measures for straddling fish stocks 
and highly migratory fish stocks.

Part VIII--Peaceful settlement of disputes

    Articles 27 through 32 set our procedures for States to 
settle their disputes by peaceful means, including negotiation, 
inquiry, mediation, conciliation, arbitration, judicial 
settlement, and resort to regional agencies or arrangements. 
Several options for settling disputes peacefully are available: 
(1) referral of disputes of a technical nature to an ad hoc 
expert panel for resolution without recourse to binding 
procedures for the settlement of disputes, and (2) application 
of Law of the Sea Convention regarding the settlement of 
disputes (Part XV of the Convention).
    Article 287 of Part XV mandates that Parties choose in 
advance one of the following means for the settlement of 
disputes--the International Tribunal for the Law of the Sea 
established in accordance with Annex VI to the Convention, the 
International Court of Justice, an arbitral tribunal 
constituted in accord with Annex VII, or a special arbitral 
tribunal constituted in accord with Annex VIII. If the Parties 
to a dispute have chosen the same procedure, that procedure is 
to be used. If they have chosen different procedures, Article 
287 mandates that disputes are to be submitted to arbitration 
in accordance with Annex VII. In submitting the Agreement to 
the Senate, the Administration stated that it would select the 
special arbitral tribunal under Annex VIII of the LOS 
Convention for the settlement of disputes.
    This Part requires any relevant Tribunal to apply the 
pertinent provisions of law ``with a view to ensuring the 
conservation of the straddling fish stocks and highly migratory 
fish stocks concerned.''
    Provisional measures may be prescribed pending the 
settlement of a dispute. However, a State Party to the 
Agreement which is not a Party to the Convention may declare 
that the provisional measures authorized to be imposed by the 
International Tribunal for the Law of the Sea by Article 290, 
paragraph 5, of the convention may not be imposed without its 
consent.
    Article 297, paragraph 3, of the Convention applies to this 
Agreement. Article 297, paragraph 3, provides that disputes 
over a coastal State's management of the fishery resources in 
its EEZ are not subject to binding dispute settlement 
procedures but may be taken before a conciliation commission.

Part IX--Nonparties to this Agreement

    Article 33 directs State parties to encourage non-parties 
to become parties to the Agreement and to take measures to 
deter the vessels of nonparties from actions which undermine 
the implementation of the Agreement.

Part X--Good faith and abuse of rights

    Article 34 obligates State Parties to fulfill their 
obligations under the Agreement in good faith and to exercise 
their rights in a manner which would not constitute an abuse.

Part XI--Responsibility and liability

    Article 35 provides that State Parties are liable in 
accordance with international law for damage or loss 
attributable to them in regard to the Agreement.

Part XII--Review conference

    Article 36 directs the Secretary-General of the United 
Nations to convene a conference four years after the Agreement 
enters into force to assess the adequacy of the Agreement in 
securing the management and conservation of straddling fish 
stocks and highly migratory fish stocks and, if necessary, to 
propose improvements.

Part XIII--Final provisions

    Articles 37 through 50 make up the final provisions 
regarding signatures, ratification, accession, entry into 
force, provisional application of the Agreement, reservations, 
declarations or statements that harmonize laws and regulations 
of a State, suspension of obligations, amendments to the 
Agreement, withdrawal, membership of international 
organizations, application of the Annexes, the depositary of 
the Agreement and the authentic texts of the Agreement.

Annex I--Standard requirements for the collection and sharing of data

    Annex I asserts the importance of the ``timely collection, 
compilation and analysis of data'' for the effective 
conservation and management of straddling fish stocks and 
highly migratory fish stocks and states that assistance should 
be provided to developing States to enhance their capacity to 
implement data collection verification, observer programs, data 
analysis, and research projects regarding stock assessments. 
This Annex sets forth the general principles that should govern 
the collection, compilation and exchange of data; the 
categories of fishery data to be collected and provided; the 
categories of data about vessels to be collected. It states 
that mechanisms for verifying fishery data by such means as 
scientific observer programs, vessel monitoring systems, and 
port sampling should be established and provides that data 
collection by flag States is to be shared with other flag 
States and appropriate regional or subregional fisheries 
management organizations or arrangements and compiled and 
shared in a timely manner.

Annex II--Guidelines for the application of precautionary reference 
        points

    Annex II provides that in the conservation and management 
of straddling fish stocks and highly migratory fish stocks, two 
kinds of precautionary reference points are to be used. Limit, 
or conservation, reference points set identified boundaries 
within which stocks can be harvested while producing the 
maximum sustainable yield. Target, or management, reference 
points are for the purpose of meeting management objectives. 
These reference points are to be stock-specific and are to 
guide conservation and management action. Management strategies 
should ensure that target reference points are not exceeded on 
average and that action to facilitate stock recovery is 
triggered if a limit reference point is exceeded.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Agreement shall enter into force 30 days after the 30th 
instrument of ratification or accession has been deposited and, 
for each State or entity ratifying or acceding to the Agreement 
thereafter, 30 days after the deposit of its instrument of 
ratification or accession. A State or entity may consent to the 
provisional application of the Agreement by notifying the 
depositary in writing, pending ratification or accession. 
Amendments adopted by the conference generally enter into force 
for the State Parties ratifying or acceding to them 30 days 
after the deposit of instruments of ratification or accession 
by two-thirds of the State Parties, unless the amendment 
specifies a smaller or larger number as necessary.

                             b. termination

    A State Party may terminate the Agreement by written 
notification to the Secretary-General of the U.N. and the 
termination shall take effect one year after the date of 
receipt of the notification.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Thursday, June 20, 1996. The hearing was 
chaired by Senator Helms. The Committee considered the proposed 
treaty on Wednesday, June 26, 1996, and ordered the proposed 
treaty favorably reported, 18-0, with the recommendation that 
the Senate give its advice and consent to the ratification of 
the proposed treaty subject to one declaration. Voting in the 
affirmative were: Senators Helms, Lugar, Kassebaum, Brown, 
Coverdell, Snowe, Thompson, Thomas, Grams, Ashcroft, Pell, 
Biden, Sarbanes, Dodd, Kerry, Robb, Feingold, and Feinstein.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty and, on balance, the Committee believes 
that the proposed treaty is in the interest of the United 
States and urges the Senate to act promptly to give its advice 
and consent to ratification. Several issues did arise in the 
course of the Committee's consideration of the Agreement, and 
the Committee believes that the following comments may be 
useful to the Senate in its consideration of the proposed 
treaty and to the State Department.

         a. fisheries management and the precautionary approach

    The Agreement generally commits State Parties to the 
conservation and management of the living resources of the 
oceans. The Convention reiterates that coastal nations already 
have sovereign rights with respect to natural resources, 
whether living or non-living, in Exclusive Economic Zones (EEZ) 
of up to 200 miles from their coastlines. What this treaty adds 
is a requirement to apply management and conservation measures 
beyond the 200 mile EEZ.
    Certainly the problems of over-fishing have become evident 
in the coastal communities of the United States and around the 
world. Many Americans reliant on fishing directly or indirectly 
as a livelihood have been forced to face the reality that 
conservation and management must be undertaken to ensure 
adequate fish stocks. This treaty will provide an added tool 
for managing fish stocks that migrate beyond a country's 
sovereign jurisdiction. Responsible management of fish stocks 
is essential to the protection of the livelihood of many 
Americans reliant on the fisheries industry.
    The Committee believes that the Straddling Stocks Agreement 
is significant in its emphasis of the ``precautionary 
approach.'' The Magnuson Fishery Conservation and Management 
Act, as amended, and the regulations promulgated thereunder, 
already provide full legislative authority on which to carry 
out the obligations of the Agreement relating to conservation 
and management of fishery resources within the U.S. EEZ. No 
further legislation is necessary to implement these or any 
other provisions of the Agreement. The importance of management 
and conservation beyond the EEZ was highlighted globally in 
March of 1995 when Canadian officials boarded the Spanish 
trawler the Estai, which had been catching juvenile turbot 
beyond the Canadian 200 mile EEZ. This Agreement increases the 
compliance and enforcement mechanisms for nations to enforce 
conservation and management laws beyond areas of national 
jurisdiction. The Agreement contains an Annex, which describes 
how the precautionary approach will be applied. Specifically, 
the Annex mandates that two kinds of precautionary reference 
points are to be used in the conservation and management of 
straddling fish stocks and highly migratory fish stocks.

                       b. no reservations clause

    During the period from January 8, 1986 to January 3, 1996, 
the Senate approved 127 treaties, 37 of which contained 
conditions, declarations, reservations, provisos or amendments. 
The Committee continues to be concerned by the increasingly 
common practice of agreeing to ``no reservations'' clauses, as 
exemplified in Article 42 of this treaty, which would impinge 
upon Senate prerogative. The Committee's recommended Resolution 
of Ratification contains a declaration that it is the Sense of 
the Senate that such a ``no reservations'' provision can 
inhibit the Senate in its Constitutional obligation of 
providing advice and consent and approval of this treaty should 
not be read as a precedent for approval of other treaties 
containing such a provision.
    Although the Committee has determined that this treaty is 
beneficial to the interests of the United States and should be 
approved notwithstanding Article 42, the Committee will 
continue to object to the inclusion of such provisions in U.S. 
treaties. The Committee has expressed in the past in report 
language its concern that such ``no reservations'' provisions 
are problematic to Senate ratification (see Executive Reports 
102-54 and 102-55).

                  VII. Explanation of Proposed Treaty

    For a detailed explanation of the provisions of this 
treaty, see Treaty Doc. 102-24.

              VIII. Text of the Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of The Agreement for the Implementation of the 
Provisions of the United Nations Convention on the Law of the 
Sea of 10 December 1982 Relating to the Conservation and 
Management of Straddling Fish Stocks and Highly Migratory Fish 
Stocks, with Annexes (``The Agreement''), which was adopted at 
United Nations Headquarters in New York by Consensus of the 
United Nations Conference on Straddling Fish Stocks and Highly 
Migratory Fish Stocks on August 4, 1995, and signed by the 
United States on December 4, 1995 (Treaty Doc. 104-24), subject 
to the following declaration:

        It is the Sense of the Senate that ``no reservations'' 
        provisions as contained in Article 42 have the effect 
        of inhibiting the Senate from exercising its 
        constitutional duty to give advice and consent to a 
        treaty, and the Senate's approval of this treaty should 
        not be construed as a precedent for acquiescence to 
        future treaties containing such a provision.